Droning Out Freedom (CliffsNotes On White Paper)

Can you hear the humming of a lawnmower in the sky? It is a government drone. Your mission is to prevent this unmanned aircraft from droning out your freedom.

Last week, NBC News turned the White House upside-down by revealing a confidential 16-page Department of Justice white paper titled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or An Associated Force.” (A better title: “Justification for Stripping U.S. Citizens of their Natural Rights and Crowning the President King.”)

I read this white paper and I encourage you to read it too. But if you simply do not want to read a treatise justifying murder, I will give you the CliffsNotes version. This paper validates what conservatives and libertarians have been warning the public about for years: The Obama Administration’s international and domestic drone policies are unconstitutional and unethical.

President Obama has used and will continue to use (per this white paper) drones against American citizens unless we speak out and defend our rights.

In September of 2011, the U.S. government used a drone to kill an innocent 16-year-old American boy, Abdulrahman al-Awlaki, and his 17-year-old cousin who left their village in Yemen to look for Abdulrahman’s missing father. (And besides American citizens, Obama’s drones have killed scores of innocent civilians abroad compared to single digits of terrorism suspects.)

Setting the Stage: Our President Is Not a King

The founders made the executive branch (President) weak compared to the legislative branch (Congress). The founders wanted checks and balances in the Constitution so that the United States would not collapse like Rome did when greedy emperors began encroaching on individual liberties, inflating the currency and over-expanding the military. The founders understood that one man with absolute power is likely to become a dictator.

The Constitution explicitly gives Congress (not the President) the power to control the purse strings and make all laws. The President’s role is to enforce the budget and laws that Congress creates. Additionally, Congress has the power to determine or “declare” war and the President simply serves as Commander-in-Chief of the army and navy.

The weighty decision of whether or not the United States enters into armed conflict with another nation does not rest on one man—it rests on Congress. Unfortunately, several presidents have violated this constitutional mandate (think Obama’s engagement in Libya).

With the ever-evolving “war on terror,” Obama is unconstitutionally keeping our country in continuous war while violating our rights as American citizens.

Public Officials Not Above The Law

This white paper incorrectly maintains that the President or any “informed, high-level official of the U.S. government” has constitutional authority to respond to a “threat of violent attack against the United States” by a U.S. citizen in a foreign country without “clear evidence.” (Note: The DOJ will likely try to use these same arguments to kill “suspicious” U.S. citizens with drones on U.S. soil.)

This paper does not unequivocally say that the “informed, high-level official” must be a member of the military. In some instances, the paper even uses the generic term “public official.”

This white paper’s elasticity could theoretically authorize Federal Reserve Chairman Ben Bernanke to order a drone to kill an American journalist traveling in the Middle East whose exercise of free speech is perceived (without clear evidence) as inciting mob behavior near an American embassy (a violent attack).

The paper cites a so-called “public authority justification” for public officials who commit acts that would normally be considered murder or theft under the Constitution. Without offering a logical argument, the paper cites opinions claiming that as long as a public official can excuse killing an American citizen with a drone, it is neither criminal nor unlawful: ‘“Congress did not intend … to criminalize justifiable or excusable killings.”’

Cunning people can justify or excuse anything. This white paper effectively dismisses the Constitution entirely and introduces a very slippery slope whereby public officials can use lethal force against any American citizen who irritates them.

Constitution Trumps International Law

This white paper incorrectly cites international law (U.N. Charter art. 51) instead of the Constitution—to argue that the President or any high-ranking official has the power to authorize force against an American citizen in another country and effectively declare a perpetual global war against terror without Congressional oversight. Basically, the DOJ conflates international law with our Constitution.

But, the Constitution trumps international law. As American citizens, our government must defer to the Constitution and respect our constitutional rights whether we are at home or abroad.

Freedom Requires Risk

We are the land of the free only because we are the home of the brave. Freedom and courage go hand-in-hand. We cannot give into the temptation to allow the federal government to seize our constitutional rights in the name of “safety.”

The aforementioned white paper repeatedly cites the “government’s interest in waging war, protecting its citizens and removing the threat posed by members of enemy forces” as more compelling than the rights of individuals “to be secure” in their persons and property from unwarranted seizures and searches (per the Fourth Amendment) and to due process before the law (per the Fifth and Fourteenth Amendments).

Are we ready to hand over our constitutional (and natural) rights to one man—the president or some random high-ranking government official? Can we trust a gallivanting prince (think former CIA Director David Petraeus) to have the professionalism, focus and integrity to respect our private property? Can one man defend our rights abroad better than a large group of people that we elect to our state and federal legislatures?

We need to stop surrendering our rightful freedoms in the name of “safety.” Perpetual drone strikes make country more susceptible to another terrorist attack by inciting blowback. Our drones keep invading the Middle East, killing scores of people including hundreds (more likely thousands, if the CIA and Pentagon would release full numbers) of innocent women, children and civilians. Not surprisingly, anti-American sentiment in the Middle East is growing, even as we are supposedly using our drones to weaken Al-Qa’ida.

Next week, I will discuss the impact of our domestic drone policy on privacy and freedom. In the mean time, speak up and defend your freedom before a drone strikes it out.

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